Nabakalebara: Legends and Reality

JUDGES CONTRIBUTE TO JUDICIAL CONFUSION IN ORISSA: A SAMPLE INSTANCE

Subhas Chandra Pattanayak

It is not possible for everybody in Orissa to go to the Supreme Court of India against orders of the High Court. So there is least possibility of a recent judgment of Orissa High Court getting tested in the Supreme Court of India. But this judgment kills the clarity and spirit of an earlier judgment of the same High Court while strangulating the original law at Order 7, Rule 11 (b) of the Civil Procedure Code contributing thereby to the confusion that the system of justice sometimes emits.

The law unambiguously says, “Where the relief claimed is undervalued and the plaintiff on being required by the court to so correct the valuation within a time to be fixed by the court fails to do so” there the “plaint shall be rejected”.

Orissa High Court had given to this law absolute clarity by defining ‘rejection’ as ‘refusal of admission’.

In deciding CRP No.268 of 2002 and related Misc. Case No.148 of 2003 on 21.2.2003, the High Court had ruled that the expression, “shall be rejected”, must mean “the plaint shall not be admitted” unless the suit is correctly valued and required duty money received.

It was a epoch making judgment as never before such a clear definition was given to the rejection-component of Order 7 Rule 11 ( c ), C.P.C.

In delivering the judgment, Justice P. K. Tripathy had not stopped with framing this definition; but had gone up to issuing a mandamus that if any District Judge fails to ensure that suits are properly valued and correct amount of court fee quantified before proceeding with the cases, “the High Court should take suitable action including considering the question of efficiency of such judicial officers to function as District Judges”.

This invaluable judgment has been rendered inconsequential by a few judges of the same High Court while allowing Probate Case No. 10 of 2002 converted to C.S.No.38 of 2005 involving property worth at least Rs 1,16,18,138/- to proceed towards “final disposal” in the District Judge Court, Bhubaneswar even though a paltry sum of Rs.5100/- corresponding to a claimed valuation of only Rs.1.5 lakhs is deposited dubiously.

This stark undervaluation, was, by a challenger to the suit, challenged before the Orissa High Court that had given birth to W.P.( C ) No.8077/08 wherein the 2003 case-law referred to supra was strongly stressed upon. The case disposed off on 24 July 2008 sloughed over the definition given to the rejection-component noted above, though the Judge had opined that if the question of valuation is raised afresh the same may be dealt with according to law by the Court below.

The law, read with the case law created by Justice Tripathy in 2003 was clear that the C.S. cannot be maintained sans deposit of duty money matching the valuation of the property which the District judge was duty-bound to determine. But the prayer for determination of the correct amount of duty money as a prerequisite to hearing was rejected again. The Judge, on 24 January 2009 noted, “I do not find any reason to take up the issue at the 1st instance without proceeding with the hearing of the case”. However the order took note of the position that till then valuation was not made an issue and so “whether the case property has been properly valued and if not, the proper valuation thereof and the additional duty money if any, to be paid by the plaintiff-applicant” was added as an issue. But the said issue was not made prerequisite to proceeding with the hearing. So this order too was challenged in W.P.( C) No.3495/09. A single Judge bench of the High Court on 5 September 2009 upheld the District Judge decision even though that was not in consonance with the case law created in 2003. Even the said case law, which the writ-applicant had stressed upon, was not paid attention to in the judgment. Against this judgment a Letters Patent Appeal was preferred. It was dismissed on 17 November 2009 as “misconceived”.

Now therefore, the primacy of determination and collection of duty money on the basis of correct value of the case property made mandatory by Justice Tripathy in C.R.P.No 268 of 2002 stands inconsequential.

Justice Tripathy had made the law so clear that at Para 11 of his judgment (Orissa Law Review 2003 [1]), he had preferred to strengthen his direction with the following observation:

It is provision in Order 7, Rule 11, CPC to reject the plaint if the suit is not properly valued or required court fee is not paid. In other words, a plaint shall not be admitted, inter alia, if there is defect in valuation or non-payment of court fee in accordance with law. Therefore, in this State, the system is prevalent that the plaint be checked by the chief ministerial officer, i.e. the Sheristadar prior to placing the same before the Bench for admission. In that respect, not only Sheristadar should be honest and sincere to his job but also he should be capable of performing that job efficiently and effectively. Therefore, District Judges have been given the discretion to select suitable staff from the eligible category to be posted as Sheristadars. Apart from that, whether or not the Sheristadar performs his duty properly, it is the duty and responsibility of the presiding officer to go into that aspect at the stage of consideration of admission of the suit. In that respect, undoubtedly a judicial officer cannot plead ignorance of law to take an excuse for not properly verifying the aspect of valuation. Therefore, on receipt of a copy of this order, the Civil Judge, Bhubaneswar shall do well to verify that aspect and to pass appropriate order. Learned District Judge shall see to it that there should be a periodical inspection by him of the Civil Courts of the original jurisdiction when the valuation aspect should be particularly gone into. Apart from that, there being requisite instructions from this Court relating to imparting training to ministerial officers by the Registrars of Civil Courts, learned District Judges shall ensure and report compliance that such training programs being undertaken, not for the name sake, but effectively and properly to the satisfaction of the District Judge. In outlaying stations, such training programs be taken up periodically by the senior most Judicial Officer. Where there are more than one officer, Sheristadars and senior grade clerks be also directed to participate in such training programs. The Registry of this Court may also ensure from all the districts relating to compliance of such training program and the matter may be placed before the Court for an administrative decision to take suitable action against the erring District Judges in that respect because to control the subordinate Courts within the Judgeship is not only the duty but also the responsibility of the District Judges and in the event of failure, the High Court should take suitable action including considering the question of efficiency of such judicial officers to function as District Judges.

So, it is not only the duty but also the responsibility of the District judge to see that his Sheristadar does not fail in finding out the correct valuation and honestly helps the Court in imposition of correct amount of court fee. In the instant case it has not happened. Not only the suit stands totally undervalued, but also the derisory duty money was entertained on a day not appointed for accepting the same but posted for purpose of filing of objection, if any, to the question raised on valuation.

But, the High Court has failed to take cognizance of this and has killed the spirit of the definition and force given to Order 7, Rule 11 ( c) of CPC by Justice Tripathy in 2003 as well as the direction he had issued to ensure that bilkers of state exchequer do not succeed in getting undervalued suits fetch their desired relief.

This sample should be cogitated upon if the system of justice is to be saved from an environment of manipulation.

WHY ORISSA, NOT ODISHA?

In these pages, the English spelling of the name of our motherland and mother tongue will remain Orissa and Oriya as before, instead of changing into Odisha and Odia.

Law has changed Orissa and its language Oriya to Odisha and Odia in English respectively. This is a very irresponsible law created by politicians having no knowledge on and devotion to classical uniqueness of Oriya language. When this bad law was on the anvil, we had opposed the proposal through several articles in these pages on grounds shown therein. And, when finally the law was created, we took it as an act of stupids. We stick to our observation and vow not to honor the bad law, come what may. For us, the classical uniqueness of our mother tongue Oriya is more important than the law enacted to change it. So, here we shall continue to use the words Orissa and Oriya notwithstanding enforcement of the law that has wrongfully changed them to Odisha and Odia. This is why this site will continue as orissamatters.com instead of converting into odishamatters.com on the strength of our devotion to the mother tongue which no law can change.
-Editor